A UK-based cyberlaw blog by Lilian Edwards. Specialising in online privacy and security law, cybercrime, online intermediary law (including eBay and Google law), e-commerce, digital property, filesharing and whatever captures my eye:-)
Based at The Law School of Strathclyde University . From January 2011, I will be Professor of E-Governance at Strathclyde University, and my email address will be lilian.edwards@strath.ac.uk .

Friday, June 16, 2006

It's always good to see empirical research backing things you intuitively anyway :-) I've long asserted in my textbook Law and the Internet that email is particularly defamation-prone because of the odd nature of the medium, which combines the spontaneity of speech with the archiving capacity of text. Now we have actual scientific confirmation of the first point.

"In effect, e-mail cannot adequately convey emotion. A recent study by Profs. Justin Kruger of New York University and Nicholas Epley of the University of Chicago focused on how well sarcasm is detected in electronic messages. Their conclusion: Not only do e-mail senders overestimate their ability to communicate feelings, but e-mail recipients also overestimate their ability to correctly decode those feelings."

Two scientists in the area, Michael Morris and Jeff Lowenstein add "One reason for this, the business-school professors say, is that people are egocentric. They assume others experience stimuli the same way they do. Also, e-mail lacks body language, tone of voice, and other cues - making it difficult to interpret emotion.

"A typical e-mail has this feature of seeming like face-to-face communication," Professor Epley says. "It's informal and it's rapid, so you assume you're getting the same paralinguistic cues you get from spoken communication." "

Which raises an interesting point for various legal systems: if sarcasm or fair comment or "joke" (in rixa in Scots law) is a legal defense, is it to be measured by what the sender meant, the recipient understood, or what the "reasonable man" would have taken out of the communication? Probably the latter in most systems, given libel damages are measured by the damage to the reputation - but what if, as the study evidence seems to show , there is no objective "true" interpretation of email speech, only different subjective interpretations? Oh how postm0dern!

Ethiopian-born businessman Mohammed Hussein Al Amoudi, who normally lives in Saudi Arabia but spends around two-and-a-half months a year in England, sued Swiss resident Jean Charles Brisard and his Swiss company, JCB Consulting International SARL in the English courts. Brisard claims to be a world expert on terrorist financing. In two reports on JCB's site he made references to Al Amoudi. These suggested that Al Amoudi might be "a knowing participant in the economic, financial and/or terrorist networks of the terrorist Osama Bin Laden". Al Amoudi sued for defamation, seking summary judgment ie judgment without trial of the evidence. The key point on which this was rejected by the court was that Al Amoudi had not proved "substantial publication" in England and this could not be proved. (It was not argued at this stage whether the coments themselves were defamatory.)

Legally, in England, damage in libel cases is presumed, and therefore need not be proven, but, as a norm, circulation figures are provided to back claims of "substantial damage" in cases involving non-English defenders. In this case however, there was a dispute over how long the offending website had been available for, and it was thus submitted only that "publication over the Internet takes place if and only if the material is accessed and downloaded by a third party within the jurisdiction". Crucially, Mr Justice Gray held that "I am unable to accept that under English law a claimant in a libel action on an Internet publication is entitled to rely on a presumption of law that there has been substantial publication".[italics added]. Acordingly the case was denied summary judgment and the claimant must prove publication in the ordinary way if he wishes to proceed.

This is an interesting application of last year's major Internet libel case, Dow Jones v Jameel , [2005] EWCA Civ 75. In that case, only five people in England were shown to have "clicked through" a link on the defender's (DJ's)online Wall Street Journal website, which lead to an allegedly defamatory item. These 5 persons "clicking through", furthermore, included the solicitor of Mr Jameel (the person allegedly defamed)and two of his business associates. Thus, it was argued by the defendant, the court should dismiss the case, as damage to reputation in England that was more than nominal had not been proven.

Several very famous non-Internet libel cases were, however, cited by Jameel as precedents that " under English law there is a presumption of damage in libel cases, [thus] the plaintiffs did not have to adduce evidence of damage arising from the publication of the article in question": see eg Duke of Brunswick v Harmer (1849) 14 QB 185, Shevill v Presse Alliance [1996] AC 959 and Berezowsky v Michaels [2001] 1 WLR 1004. In other words, damage to reputation would be presumed. The Court of Appeal in Jameel upheld these precedents, and furthermore held on review of them that this presumption was still, in practice, irrebuttable. In conventional publication, it is extremely difficult to establish how many people have read a publication, so the presumption of damage makes sense or proof may become a bar to redress in very many cases. However with Internet hit counters, proof of publication in the jurisdiction (& numbers of readers) can become trivially easy. The court nonetheless thought there were good reasons why damage should still always be presumed, and furthermore that such a presumption did not "chill" freedom of expression under the Human Rights Act 1998 and/or Art 8 of the European Convention on Human Rights.

However this was not the end of the story. Jameel's case was still rejected as an "abuse of process". Since this was a non-EU, non-Brussels Convention case, an application to serve outside the jurisdiction of England was necessary, which raised the question of whether 'a real and substantial tort ha[d] been committed within the jurisdiction': Kroch v Rossell [1937] 1 All ER 725, Chadha v Dow Jones & Co Inc [1999] EMLR 724, and Civil Procedure Rules 6.20(8). Since the damage to Mr Jameel's reputation in England was apparently minimal, in the Court of Appeal's view, only "very modest damages" would have been available after what would have been a lengthy and expensive trial. So the case was thrown out as an abuse of process.

LJ Phillips MR noted that : "There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. ... Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."

This case (which I must shamefacedly admit to having missed when it first came out) is a remarkable step forward, by a cleverly lateral route, from the much-criticised jurisdictional rules on forum non conveniens applied to date by the English courts in Internet-related cases like Berezovsky and Loutchansky v Times Newspapers & Ors Nos 2 to 5 [2002] QB 783. Jameel does not over-rule these cases (inded it could not, not being of House of Lords level). Nor does it impose a US style single publication rule, as Geoffrey Robertson QC has suggested in a number of cases, nor does it change the rules established in The Spiliada [1987] AC 470, as to when England is an appropriate forum (basically, nearly always:-)

But it does provide an alternative route by which to argue, sensibly, that the English courts should not be involved in cases where the circulation of the libelous item in England has been tiny, and the damages in England are therefore also likely to be minimal. This is a giant step forward for opposing the "chilling effect" of the threat of action in England in relation to texts on international websites which essentially have little or no connection to English readers. The Master of the Rolls is to be congratulated.

This author would however suggest that it's still not enough: Internet cases require a total revamp of the rules of forum non conveniens. Imagine if Berezovsky had been argued on post-Jameel rules, for example. That case concerned a tiny circulation of the libellous item in question in England, compared to an enormous circulation in the US - but still a circulation significant enough for more than nominal damages. I suspect the court would still have been forced to take it, even given the addition of the "abuse of process" concept - in other words we have still not budged from the idea that if England is an appropriate forum but obviously not THE most appropriate forum, it will still accept all comers. On the Internet this is clearly turning England into a "libel case magnet" as was asserted during Berezovsky. Given the weight of post-Spiliada authority any change will however require legislation: which will be , one suspects, a long time coming.